IN THE CASE OF:	  

		BOARD DATE:	  23 June 2009

		DOCKET NUMBER:  AR20090001789 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) be set aside and that the letter of reprimand and the DA Form 2627 be removed from his records and the pay recouped from him be returned to him.

2.  The applicant states, in effect, that the nonjudicial punishment (NJP) was based on unsubstantiated derogatory information of a personal relationship between himself and an enlisted member serving outside of his command during Operation Enduring Freedom-8 in January 2008.

3.  The applicant provides a copy of the Board of Inquiry results, a copy of the Board of Inquiry Legal Reporter Transcripts, and a copy of the DA Form 2627 with his rebuttal.

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the United States Army Reserve (USAR) on 10 June 1994 for a period of 8 years.

2.  He was commissioned as a USAR second lieutenant on 18 May 2000 and was ordered to active duty on 3 July 2000 as a Finance Corps officer detailed to the infantry branch for a period of 2 years under the lieutenant branch detail program.  He was promoted to the rank of first lieutenant on 3 January 2002 and to the rank of captain on 1 December 2003.

3.  On 5 October 2007, while the applicant was serving as a finance detachment commander in Afghanistan, a field grade officer was appointed to conduct an informal investigation under the provisions of Army Regulation 15-6 (commander's inquiry) to determine if the applicant had any improper relationships with a specific staff sergeant (SSG) or any other female enlisted members.

4.  On 20 December 2007, the investigating officer concluded that the applicant did have an improper sexual relationship and fraternized on terms of military equality with a female staff sergeant.  The investigating officer also concluded that it was "highly probable" that the applicant had an inappropriate relationship with Specialist (SPC) L____ A____.  The investigating officer recommended that nonjudicial punishment be imposed against the applicant, that he receive a general officer memorandum of reprimand (GOMOR) as part of his NJP, and that the GOMOR be filed in his official military personnel file (OMPF).  The investigating officer also recommended that he be relieved of command.

5.  On 13 February 2008, NJP was imposed against the applicant by the commanding general (CG) of Combined Joint Task Force-82 for wrongfully engaging in an intimate and sexual relationship with a female SSG and wrongfully and dishonorably engaging in an inappropriate relationship with SPC L____ A____, an enlisted member within his command, such conduct being disgraceful and constituting conduct unbecoming an officer and a gentleman.  The applicant did not demand trial by court-martial and requested a closed hearing.  His punishment consisted of a reprimand and a forfeiture of $2,381.00 pay per month for 2 months.  The applicant elected not to appeal his punishment and the imposing commander directed that the DA Form 2627 be filed in the performance section of his OMPF.  The applicant received his administrative reprimand on the same day.

6.  The applicant submitted a 7-page rebuttal in which he requested that the CG file the GOMOR in his local file and to reconsider the administration of NJP.  He stated that he accepted responsibility for his inappropriate relationship with the SSG; however, he denied having a relationship with the SPC.  He went on to explain his version of the events that occurred in his unit, expressed regret for his conduct, and requested that the CG consider his overall excellent record of performance as an officer.  The CG directed that his GOMOR be filed in his OMPF.  No action was taken to set aside the NJP.

7.  On 20 January 2008, the applicant received a relief-for-cause officer evaluation report (OER) covering the period from 3 June 2007 through 17 January 2008.  The report evaluated him as a finance detachment commander.
8.  The applicant filed an appeal of the OER to the Officer Special Review Board (OSRB) requesting that it be removed from his OMPF and on 23 October 2008 the OSRB denied his appeal.

9.  On 30 October 2008, the applicant appeared before a Board of Inquiry that was convened to determine if the applicant should be separated from the active duty Army for misconduct, moral, or professional dereliction.  The board determined that there was sufficient evidence to prove that the applicant did commit acts of personal misconduct by maintaining an inappropriate sexual relationship with an SSG; however, there was insufficient evidence to prove by a preponderance of the evidence that he had an inappropriate relationship with an SPC.  The board opined that he had been disciplined for his poor judgment and misconduct and found that he still possessed qualifications and capabilities that can benefit the Army in his current grade.  The board recommended that he be retained on active duty and proceed on his current assignment instructions.

10.  The applicant submitted an appeal to the Department of the Army Suitability Evaluation Board (DASEB) requesting that the GOMOR be transferred to the restricted section of his OMPF based on his assertion that the intent of the GOMOR had been served.  The DASEB denied his petition on 15 January 2009.

11.  Army Regulation 27-10 (Military Justice) provides policy and procedures pertaining to the administration of military justice within the Army.  It provides, in pertinent part, that setting aside and restoration is an action whereby the punishment or any part or amount, whether executed or unexecuted, is set aside and any rights, privileges, or property affected by the portion of the punishment set aside are restored.  Nonjudicial punishment is "wholly set aside" when the commander who imposed the punishment, a successor-in-command, or a superior authority sets aside all punishment imposed upon an individual under Article 15.  The basis for any set-aside action is a determination that, under all the circumstances of the case, the punishment has resulted in a clear injustice.  "Clear injustice" means that there exists an unwaived legal or factual error which clearly and affirmatively injured the substantial rights of the Soldier.  An example of "clear injustice" would be the discovery of new evidence exculpating the Soldier.  "Clear injustice" does not include the fact that the Soldier’s performance of service has been exemplary subsequent to the punishment or that the punishment may have a future adverse effect on the retention or promotion potential of the Soldier.  Normally, the Soldier’s uncorroborated sworn statement will not constitute a basis to support the setting aside of punishment.

12.  Army Regulation 600-37 (Unfavorable Information) serves as the authority for filing of unfavorable information in the OMPF.  It states, in pertinent part, that a non-punitive memorandum of reprimand or admonition will be filed in the OMPF only when directed by a general officer or the officer having general court-martial jurisdiction over the recipient.

DISCUSSION AND CONCLUSIONS:

1.  It appears that the NJP in question was imposed in compliance with applicable laws, regulations, and policies by a commander empowered to do so and that his punishment was not unjust or disproportionate to the offenses for which he was accused.

2.  The applicant’s contention that the GOMOR is unjust because it was based on unsubstantiated derogatory information of a personal relationship between himself and an enlisted member (SPC) also appears to be without merit.  The GOMOR was administered as part of the punishment imposed under NJP and was specified in the NJP.  Inasmuch as he received the NJP first and was afforded the opportunity to submit matters in his own behalf in the form of an extensive 7-page rebuttal, there appears to be no violations of any of the applicant’s rights or any doubt that the imposing officer was not convinced of his innocence.

3.  Notwithstanding the applicant's denial of having an inappropriate relationship with an SPC, the applicant admitted to having an inappropriate sexual relationship with an SSG, which in itself was sufficient justification to support the imposing commander's actions.

4.  While he asserts that the allegation against him regarding his having a relationship with an SPC is false and that he is innocent of the allegation, it is noted that he chose at the time not to demand trial by court-martial whereby he could face his accusers and assert his innocence before a jury of his peers.  He instead chose to accept NJP proceedings where the commander was not bound by the rules of evidence before courts-martial.

5.  Accordingly, there appears to be no basis to set aside the record of NJP, to restore the forfeitures of pay, or to transfer or remove the GOMOR from his OMPF.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X___  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________X_______________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090001789



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ABCMR Record of Proceedings (cont)                                         AR20090001789



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